Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-22-00734-CV

Sabian R. SANTOS,

Appellant

v.

Rene DELUNA,

Appellee

From the 150th Judicial District Court, Bexar County, Texas

Trial Court No. 2019CI13781

Honorable Antonia Arteaga, Judge Presiding

Opinion by: Rebeca C. Martinez, Chief Justice

Sitting: Rebeca C. Martinez, Chief Justice

Luz Elena D. Chapa, Justice

Lori I. Valenzuela, Justice

Delivered and Filed: January 24, 2024

AFFIRMED

Sabian R. Santos appeals from a final judgment, rendered in accordance with a jury verdict, 

that awards Rene Deluna $100,267.58 for damages stemming from a motor vehicle accident. In 

three issues, Santos argues that: (1) the trial court abused its discretion in failing to grant a mistrial 

after Santos testified that he believed his insurance should be held responsible for Deluna’s 

medical expenses; (2) the evidence is legally and factually insufficient to support the jury’s award 

of $50,000.00 for Deluna’s past loss of earning capacity; and (3) alternatively, we should suggest 

a remittitur as to the jury’s award of Deluna’s past loss of earning capacity. We affirm.
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I. MISTRIAL

In Santos’s first issue, he argues that the “trial court abused its discretion in failing to grant 

a mistrial after [he admitted to being] protected by indemnity insurance.” On direct examination 

by Deluna, Santos testified:

Q. Regardless of any positions you’ve taken prior, you accept responsibility 

for this accident, correct?

A. Yes, sir.

Q. Who do you think should be held to pay Mr. DeLuna’s medical bills in the 

past?

A. I believe my insurance.

Q. Who do you think should be held responsible for future medical necessities 

of Mr. De Luna?

A. My insurance.

SANTOS’S COUNSEL: Your Honor, may we approach?

Outside the presence of the jury, the parties argued:

SANTOS’S COUNSEL: Yes, Your Honor. Thank you. On cross-examination of our 

client, Sabian Santos, Plaintiff’s counsel elicited some

testimony that we believe is highly prejudicial, and it could 

or it probably will influence the jury at this point. There 

w[ere] two times when the answer to the questions posed 

w[as] “insurance,” and we had a motion in limine on that, in 

Defendant’s Motion in limine, which was agreed to.

[1]

 There 

was no prior bench conference by Plaintiff’s counsel in an 

attempt to get the Court’s approval to ask questions that 

would elicit an “insurance” response. I am not saying that 

that was [Deluna’s Counsel’s] s intent when asking it, but as 

we all know, it’s cross-examination; and the question could 

have been tailored to avoid that kind of outcome. And I am

asking, at this point, for a mistrial.

DELUNA’S COUNSEL: Your Honor, it was not my intent to elicit that. I assumed 

that the witness had been instructed regarding — in that 

regard. I simply asked who does he feel should be 

1 On appeal, Santos makes no mention of any in limine agreement.
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responsible for these things. He offered the concept of 

insurance solely on his own. I had no — it was not my intent 

to elicit any reference to his auto insurance policy. He 

responded, Your Honor. It was just an average question. 

One that I’ve asked many times in almost every single one 

of my personal injury cases involving motor vehicle

collisions.

SANTOS’S COUNSEL: While it may not have been the intent to elicit that testimony, 

the question could have been asked: Do you believe you’re 

responsible or should be held responsible for this accident 

and the injuries and the bills and everything else he wanted 

to ask. The — my client, Mr. Santos, was instructed 

numerous times. This is not my first rodeo either. It is not

my — I do not believe that we did anything to create this 

situation. I believe that because Mr. Santos is, you know, an 

average citizen, while we did give the instruction numerous 

times not to mention insurance, at that point, with the 

question that was posed to him, I believe that was the only 

honest answer he thought he could give. And at this point, I 

think that that’s — the jury has already heard it twice. Had 

it been maybe once, in passing. But twice, back-to-back, it’s 

a very hard statement to overcome, and the bell can’t be 

unrung at this point.

COURT: Respectfully, this is our first day, and I’m not inclined to 

grant a mistrial. I sympathize with you, but I don’t believe 

that the question was meant to elicit it. And so let’s go ahead

and get it straightened out. I’m happy to instruct the jury, 

although, I’m afraid that’s going to just put more of a 

highlight on it. But if you’d like for me to, I’d be happy to. 

Initially, in their instructions I gave them, it was to make 

certain that they not consider whether there’s insurance or 

no insurance here. And so I gave them that instruction. I 

can follow up tomorrow, if you would like me to, if you want 

to consult with your team and see if you want me to. But, 

respectfully, I cannot grant — I will not grant a mistrial at 

this time for those reasons. Anything more?

Santos did not request the instruction offered by the trial court, and none was given.

Santos makes four arguments. First, Santos argues that “[i]t is error to admit evidence of 

a defendant’s liability insurance because doing so informs the jury that someone other than the 

defendant may be required to pay the damages awarded by the jury.” Second, Santos argues that 
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“the issue of [his] liability insurance was deliberately injected through the artful questions of 

counsel.” Third, Santos argues that “the jury awarded more damages to [Deluna] than it would 

have otherwise had it not learned that someone other than [Santos] may be liable for the judgment.” 

Fourth, Santos argues that Deluna’s “artful questions” coupled with the jury’s award of “inflated 

damages” establishes that the “trial court’s denial of a mistrial” was “incurable error.” Relatedly, 

Santos insists that he satisfied the requirements of Texas Rule of Appellate Procedure 33.1(a) by, 

among other things, obtaining an adverse ruling on his oral motion for a mistrial.

Deluna responds by arguing that Santos failed to preserve his first issue by not objecting 

to the testimony and not requesting an instruction to disregard the inadvertent testimony regarding 

insurance.

In Alamo Community College District v. Browning Construction Co., 131 S.W.3d 146, 157 

(Tex. App.—San Antonio 2004, pet. denied), the client of a general contractor argued that the trial 

court erred in allowing the general contractor to make two references to the architect’s insurance 

coverage. We noted that the client failed to object in either instance. Id. Nevertheless, the client, 

as Santos does here, argued “these references to insurance are incurable error, implying it did not 

have to object.” Id. We rejected the client’s argument, writing that “[t]his proposition, however, 

does not square with Texas law.” Id. (citing Dennis v. Hulse, 362 S.W.2d 308, 309 (Tex. 1962); 

Meyers v. Searcy, 488 S.W.2d 509, 514–15 (Tex. Civ. App.—San Antonio 1972, no writ)). We 

further held that “[b]ecause [the client] has waived any complaint to the alleged mentions of 

insurance, and because mention of insurance is not incurable error, we overrule this issue on 

appeal.” Id. Santos makes no mention of Alamo Community College. However, it squarely 

governs our analysis and requires us to overrule Santos’s first issue. Santos’s first issue is 

overruled.
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II. PAST LOSS OF EARNING CAPACITY

In Santos’s second issue, he argues that the evidence is legally and factually insufficient to 

support the jury’s award of $50,000.00 for past loss of earning capacity. In Santos’s third issue, 

he alternatively argues that he is entitled to remittitur. Deluna responds by arguing that Santos 

confuses “lost earnings” with “loss of earning capacity.”

A. Standard of Review

When reviewing the legal sufficiency of the evidence, we consider the evidence in the light 

most favorable to the challenged finding and indulge every reasonable inference that would 

support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We must credit favorable 

evidence if a reasonable fact finder could and disregard contrary evidence unless a reasonable fact 

finder could not. Id. at 827. To sustain a challenge to the legal sufficiency of the evidence 

supporting a jury finding, the reviewing court must find that: (1) there is a complete lack of 

evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to 

the only evidence offered to prove a vital fact; (3) there is no more than a mere scintilla of evidence 

to prove a vital fact; or (4) the evidence conclusively established the opposite of a vital fact. Id. at 

810.

In reviewing a factual insufficiency point, this court must weigh all of the evidence in the 

record. Flying J Inc. v. Meda, Inc., 373 S.W.3d 680, 690 (Tex. App.—San Antonio 2012, no pet.) 

(citing Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam)). A factual sufficiency attack 

on an issue on which the appellant did not have the burden of proof requires the complaining party 

to demonstrate there is insufficient evidence to support the adverse finding. Croucher v. Croucher, 

660 S.W.2d 55, 58 (Tex. 1983). A reviewing court will reverse the trial court “only if the evidence 

which supports the jury’s finding is so weak as to be clearly wrong and manifestly unjust.” Star 

Enter. v. Marze, 61 S.W.3d 449, 462 (Tex. App.—San Antonio 2001, pet. denied) (citing Cain v. 
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Bain, 709 S.W.2d 175, 176 (Tex.1986)); see also Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.

1985). 

We apply these standards mindful that this court is not a fact finder. Maritime Overseas 

Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). The trier of fact is the sole judge of witnesses’

credibility and the weight afforded their testimony. See City of Keller, 168 S.W.3d at 819–20. 

B. Applicable Law

Santos references two opinions from the Seventh Court of Appeals in support of his second 

issue. First, Santos references Koko Motel, Inc. v. Mayo, 91 S.W.3d 41, 51 (Tex. App.—Amarillo 

2002, pet denied), wherein the court explained that “lost earning capacity concerns the impairment 

to one’s ability to work” and that “[i]t entails the consideration of what the plaintiff’s capacity to 

earn a livelihood actually was and assesses the extent to which it was impaired.” Id. (citing Strauss 

v. Continental Airlines, Inc., 67 S.W.3d 428, 435 (Tex. App.—Houston [14th Dist.] 2002, no pet.); 

Border Apparel–East, Inc. v. Guadian, 868 S.W.2d 894, 897 (Tex. App.—El Paso 1993, no writ)). 

In Koko Motel, the court surveyed evidence relating to the personal-injury plaintiff’s weekly 

earnings before a slip-and-fall incident and an expert’s opinions regarding the plaintiff’s lost 

earning capacity in assessing the personal-injury defendant’s legal and factual sufficiency 

challenge. Id. at 43, 51–52.

Second, Santos references Lamb v. Franklin, 976 S.W.2d 339, 344 (Tex. App.—Amarillo 

1998, no writ), wherein the personal-injury defendant challenged the legal and factual sufficiency 

of the evidence supporting lost earnings sustained in the past by the plaintiff. The court wrote:

The jury found that Lamb suffered a loss of $2,000.00 earnings in the past. 

However, Lamb testified that she had not lost any pay during the time she was away 

from work. The only evidence possibly supporting an award for lost earnings 

comes from testimony that Lamb missed 28 1/2 days of work as a result of her 

injuries. However, there is no evidence in the record showing that Lamb’s sick 

leave was compensable time; that is, there is no evidence that by using sick leave, 

Lamb was losing any wages or compensation. Accordingly, the trial court erred in 
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overruling the appellees’ objections and motions notwithstanding the verdict as to 

the jury award on lost earnings.

Id. 

C. Analysis

Deluna testified that, before the May 22, 2018 accident, he earned $6,000 a month in takehome pay as a sand coordinator at Triple J. Deluna further testified that, after the accident, Triple 

J required a “work release” before allowing him to return to his prior position. However, according 

to Deluna, his treating physicians did not release him to return to work for approximately eleven 

months. When Deluna was released to return to work by his treating physicians, he could no longer 

haul the “big, heavy hoses,” and he was limited to “more e-mails and updates and parking the 

truck.” In Deluna’s summation, he requested an award of $66,000.00 for loss of earning capacity 

sustained in the past. The jury awarded him $50,000.00.

Santos references Lamb, 976 S.W.2d at 344, and argues that:

An award of past lost earnings is not supported by sufficient evidence where there 

is no evidence that the time missed from work was compensable. Here, there was 

no testimony as to whether Plaintiff’s eleven-month absence from work was paid

time off. There were also no pay stubs, handbooks, or other employment 

documents admitted into evidence that would have shown Triple J’s time-off 

policy. And Plaintiff never testified one way or the other as to whether he was 

being paid during those eleven months.

We have held that “[t]here is a difference in the proof required to establish loss of earning 

capacity and that required to establish lost earnings in the past.” Carr v. Galvan, 650 S.W.2d 864, 

867 (Tex. App.—San Antonio 1983, writ ref’d n.r.e.). “Past lost earnings are the actual loss of 

income due to an inability to perform a specific job a party held from the time of injury to the date 

of trial.” Strauss, 67 S.W.3d at 435. “Recovery for loss of earning capacity is not based on the 

actual earnings lost, but rather on the loss of capacity to earn money.” Id. Accordingly, Santos’s 

reliance on Lamb for his proposition that it sets “pay stubs, handbooks, or other employment 
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documents” as an evidentiary threshold for the recovery of a loss of earning capacity sustained in

the past is misplaced. 

The jury may have reasonably inferred that Deluna’s treating physicians’ refusal to release 

him to work for eleven months is legally sufficient evidence that his “capacity to earn a livelihood 

actually was . . . impaired.” Koko Motel, 91 S.W.3d at 51. Deluna also testified that before the 

accident, he earned $6,000.00 a month as a sand coordinator. There is, therefore, legally sufficient 

evidence supporting the jury’s award of $50,000.00 for Deluna’s past loss of earning capacity. 

Similarly, we cannot say that the jury’s award is so weak as to be clearly wrong and manifestly 

unjust. Santos’s second and third issues are overruled. See Pope v. Moore, 711 S.W.2d 622, 624

(Tex. 1986) (per curiam) (“Since the proper remittitur standard is factual sufficiency, it was 

improper for the court of appeals to order a remittitur after finding factual sufficiency.”).

III. CONCLUSION

We affirm the trial court’s judgment.

Rebeca C. Martinez, Chief Justice